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Stephen Keim
4 September, 2009  
Prison reform gathers momentum - slowly

The crisis of overcrowding in the Californian prison system has seen a federal court order a reduction in the number of inmates … Australian prisons are heading in the same chaotic direction … Stephen Keim reports

imageOn August 4 a specially constituted three person District Federal Court ordered the State of California to prepare a plan to drastically reduce the over crowding in California’s prisons.

The three judges, Stephen Reinhardt, Lawrence Karlton and Thelton Henderson, gave the state 45-days to provide the court with the plan, which is intended to achieve a reduction in the prison population within two years, or less.

The required population reduction is approximately 50,000 prisoners – from 160,000 to 110,000.

In the prescribed terminology this is a decrease of 200 percent of design population down to just 137.5 percent of design capacity.

The decision of the court is the culmination of two class actions about conditions in California prisons, each of which has been on foot for some time.

Plata v Schwarzenegger was filed in 2001 on behalf of all present and future inmates of Californian state prisons.

It alleged that the standard of health care in the prisons was so poor as to give rise to breaches of the eighth amendment prohibition against cruel and unusual punishments.

Coleman v Schwarzenegger is an even older class action directed against the unconstitutional status arising from the failure to provide any degree of adequate mental health care in California’s prisons.

It commenced almost two decades ago in April 1990.

Both class actions had given rise to evidentiary findings that the conditions in the prisons were unconstitutional for the reasons complained of.

imageThe Federal Courts had ordered a number of different remedies requiring the state to take steps to rectify the unconstitutional prison conditions.

This included placing the prison health care system in the hands of a receiver and appointing a special master to assist the state to correct the deficiencies in mental health care.

Despite great time and effort on behalf of the state authorities and their court appointed helpers, little progress in rectifying the circumstances had been made.

In response, applying the procedural requirements of the Prison Litigation Reform Act 1996 (the PLRA), a three person court was appointed to consider whether a prisoner release order should be made.

The judges in their August 4 reasons found that the necessary conditions were satisfied to make a prisoner release order of very significant proportions.

The procedural and evidentiary requirements imposed by the PLRA include that the court must find a previous less intrusive order has been made that failed to remedy the breach of federal obligations and the state must have had a reasonable time to comply.

At that point, a three person court may be appointed to consider a prisoner release order.

However, before it can make the order the court must be satisfied that crowding is the primary cause of the breach of federal obligations and that no other form of relief is able to achieve compliance.

Further, general equitable principles apply such that the relief granted must extend no further than necessary to correct the violation of the federal obligation and must be the least intrusive means of correcting the violation.

The court must also give substantial weight to any adverse impact that the order might have on public safety or the operation of the criminal justice system.

The court relied on the evidence of past and present court administrators, along with medical practitioners with prison experience, and found that crowding was the primary cause of the problems in the system.

Reception prisons were almost all at 200 percent of design capacity, or more, with two such centres at 300 percent.

So little space was available that medical consultations took place separated only by a thin screen so that all conversations could be widely heard.

The lack of beds for mental health patients resulted in crisis patients remaining untreated.

One report received by the court said:

“Suicidal inmates referred to mental health crisis beds have spent from Thursday evening to Monday morning being transferred between so-called dry cells which are tiny free-standing upright cages with mesh wiring surrounding them (and no toilet) during the day and so-called wet cells which are holding cells that have toilets at night.”

Another report stated that, in several instances, inmates referred to mental health crisis beds have committed suicide while waiting transfer.

The suicide rate at 25.1 per 100,000 was not only nearly twice the national average but reviews suggested that nearly three quarters of these deaths were potentially preventable if the health systems in the prisons had functioned properly.

General confinement in cells designed for one inmate contained triple bunks and the cramming of low and medium risk prisoners into converted gyms and day rooms were other endemic symptoms of overcrowding.

Overcrowding, lack of space and lack of staffing frequently meant that transfers around the prison for medical purposes were logistically impossible.

imageIn considering issues of public safety, the court concluded that the ordered reduction of prison numbers could be achieved relatively easily without adverse impact on public safety.

First, the court endorsed use of an expansion of earned remissions or “good time credits” to reduce effective sentences.

Secondly, the court recommended the diversion from a return to prison of parolees who had committed technical violations, such as missing an appointment with a parole officer.

The third suggestion was the greater use of community based alternatives to divert prisoners sentenced to relatively short sentences.

Fourthly, the court endorsed an expansion of rehabilitation programs which had been shown to be effective.

While the court strongly recommended sentencing reform in California, including a sentencing commission with power to set down guidelines for sentencing judges, it considered that its ordered reduction could be achieved without resorting to more systemic reforms of that kind.

The court also considered that the reduction (and increase in rehabilitation and community based programs) could be achieved with a net saving of expenditure.

The order of the court runs for more than a page. It commences:

“Within 45 days, the defendants shall provide the court with a population reduction plan that will in no more than two years reduce the population of the California Department of Corrections and Rehabilitation’s adult institutions to no more than 137.5 percent of their combined design capacity… In preparing their plan, the defendants shall consult with plaintiffs, intervenors, and other relevant stakeholders, including the Coleman special master and the Plata receiver.”

imageSchwarzenegger (pic) said he doesn’t think judges should be directing state leaders, but the US Supreme Court has just turned down a request by California to delay preparation and presentation of the prison plan.

The decision in Coleman and Plata has relevance for Australia.

Australian correctional authorities are making many of the same policy mistakes that pushed the Californian system past the point of failure.

In particular, our prison populations are experiencing a long, sustained and rapid increase in numbers.

The Queensland government trumpets, almost as a virtue, that there has been a 142 per cent increase in prisoner numbers since July 1993.

The prisoner population is expected to increase by another 90 per cent by 2015.

New South Wales, a state with legendary budgetary difficulties and problems in delivering services to the general community, still manages to lock-up more and more people.

In August the number of prisoners in NSW jails was, for the first time, approaching 10,500.

If the numbers continue to rise at this rate at least one new large jail will need to be built and funded every year in NSW to cope with the influx of new inmates.

Prisoner numbers in Australia have increased by more than 50 per cent over the last decade or so.

The Californian decision also shows the how the constitutional protections in the United States Bill of Rights can be used to provide a response to the existence of inhumane prison conditions.

Much of the debate about Charters of Rights in Australia has focussed on a few headline cases in countries with Constitutional rights protections (e.g. Roe v Wade), while ignoring the way in which protections can be utilised on a day to day basis.

The Coleman and Plata decision can be argued both ways.

Opponents of an Australian Charter may say that the reliance on litigation to solve policy issues is possibly a cause of California allowing things to deteriorate for so long.

Indeed, there has been the germ of a response to the increases occurring in Australian prison numbers in that the Australian Research Council is funding a special research project on the problem – the Australian Prisons Project.

It will be interesting to see whether the dimensions of the problem in Australia capture the imagination of the public, the media and politicians.

According to the steering committee for the Review of Government Service Provision, prison expenditure in 2007-2008 was $2.6 billion.

The annual growth rate in expenditure over the last decade has been around 5.5 per cent.

Spending on prisons was the fastest growing item in the justice area – approaching twice the rate of growth of police services.

If careful research and clear headed debate do not result in drastic changes to the law and order mentality in Australia then, unlike California, the courts are not be able to step in.

Stephen Keim SC, Eagle Junction